Archive for January, 2017

Over our years as mediators, we have seen couples struggle with the emotional and financial aspects of divorce. Some couples survive the process relatively unscathed and successfully move on with their lives. Others continue to wallow in bitterness and anger which negatively affects their ability to heal.

From our observations, we have noticed a pattern that, if followed, can help a couple, their children, and extended families get through the divorce process successfully. We call the pattern F-A-C-C-T®.

These five letters — representing five foundational principles — are the new rules for couple separation:

Family Re-Formation

Family Re-Formation is taking something that exists now and restructuring it into something better for the future.

Awareness

Awareness has to do with couples understanding what got them to this point. When spouses remarry and haven’t tackled the issue(s) that led them to divorce in the first place, they jeopardize their new relationship.

Communicate

Communication in divorce is the respectful exchange of accurate information, and that is all it is. It is showing courtesy to one another.

Commitment and Trust

From a legal standpoint, divorce is similar to a lawsuit over a breach of a contract, the contract being the marital agreement. The resolution is the creation of a new agreement: the marital settlement agreement (MSA). For a successful divorce, both sides must be committed to making the settlement agreement work. Over time, this leads to building trust that both parties are going to live up to their side of the bargain.

F-A-C-C-T®:

Family Re-Formation

Awareness

Communication

Commitment

Trust

These are not terms couples have associated with ending a marriage. They are more likely to believe that they are separating based on the lack of these qualities. However, through mediation, they discover that these are the keys to moving forward.

In upcoming articles, we will examine each of the F-A- C-C- T Ⓡ foundational principles in more detail. The goal is to teach couples what divorce is really all about: something outside of court that can move them forward in life. It’s about helping families, and couples rebuild their lives.

The way the rules are set tend to drive the way people behave. That is very apparent within divorce. The simplest way to state how this works is with the struggle over money and resources. Like in any war, there is an objective that one side of the relationship sees as worthy of the battle.

When looking at divorce and resources, we note that the rate of divorce in the United States is on a decline, and has been for some time. Part of this has to do with a decrease in the number of marriages happening in the first place. People are waiting until later in life to marry, and thus having children later. Further, people are bringing more property to the marriage, which creates more stability and security, leading to a better climate for the relationship.

Wealth (resources) is a significant factor in divorce. Those who suffer from financial problems often seek divorce as a way to get away from the economic suffering. It is odd, given that divorce can accelerate the path into poverty for women and children of divorce, that financial trouble is a factor cited by so many for breaking up. The fight that can follow, as well as the efforts to enforce court orders, only increases the cost, aggravation, and pain of separation.

Looking across the Atlantic to Scandinavian countries, we see a different picture. The divorce rate within these societies is very high. Sweden, for example, saw over 25,100 divorces in 2013 alone. That was their highest figure since 1975. Similar to the changes in laws in America to the no-fault divorce concept, in 1974 the law in Sweden changed to allow divorces to be sped up. Since that change was enacted, the divorce rate rose each year for over 40 years. The divorce process had become so easy that, as one author notes, “more than 100 couples who tied the knot in 2013 were divorced by the end of the same year.”

A review of factors the led to the higher rates found that morality, or any form of a degraded society, was not the reason behind the changes. The factor that weighed in as the most important—that led to about 47% of all marriages in Sweden ending in divorce—was economic security. Based on information by researcher Glenn Sandström, “The expansion of opportunities to make do without a spouse, the fairer distribution of wealth among social classes, and the development of a welfare state have all contributed to higher divorce rates.” Sandström further notes that, “Individualistic and secular values have flourished and gained legitimacy… periods, where divorce rates rose have coincided almost entirely with times of major progress in the welfare state.”

The result is that an economy that supports the people in a welfare state leads to a lack of need for people to stay in relationships. Therefore, other than the emotional aspect, divorce becomes easy and a non-stressful event.

That does not exist in the United States, and therefore, couples find that they need to “pay” for the divorce between themselves. In so many cases, the path of that fight leads to court. The judge is confronted with the facts and existing laws. The judge then needs to craft a solution based on that law and/or existing cases with similar facts in question. One recent case focusing on the date of separation illustrates this process in California.

In 2015, the case of the Marriage of Davis (2015) , the California Supreme Court ruled that for a couple to be declared as separate and living apart, they must have physically separated and must be in two different locations. This ruling defied the standard practice of family law professionals for couples to simply agree on a date of separation. The ruling from the Supreme Court of California removed any judicial discretion in cases where couples may be negotiating on setting a date of separation that meets their requirements for their unique situation.

Following this ruling, the California Legislature was called into action and Senate Bill SB 1255 was enacted and signed into law by Governor Jerry Brown. This law overrode the Supreme Court and offered clarification to the law in that it allows the couple to consider many reasons for living under the same roof while going through a divorce. These include economic and family reasons, among others.

Why is the date of separation so important? It sets the date at which earnings and asset acquisition are assigned to the individual as separate from the marital assets. The impact is that financial assets acquired or earned from that point forward are no longer part of the marital property.

The fight over money led to a court action which, in turn, led to a legislature enacting a law. That is the basic method under which the family code evolved. Since we do not live in a welfare society, a large part of the law is about money. When couples are not financially minded and only think of the “legal rights,” they often make mistakes—not realizing the consequences of those choices on a financial level.